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JOHN MARSHALL 



BY 



JAMES BRADLEY THAYER 

II 

[Reprinted from the Atlantic Monthly for March, 1901] 



JOHN MARSHALL.^ 



It was one hundred years ago on the 
4th of February since the Supreme Court 
of the United States first sat in the new 
Capitol at Washington, that " wilderness 
city, set in a mudhole," of whose begin- 
nings we have all lately been reading. 
The court sat with a new Chief Justice, 
John Marshall, of Virginia. 

At that time he was something over 
forty-five years old, for he was born on 
September 24, 1755. His home had al- 

^ What follows was, in part, contained in 
an address before the Harvard Law School and 
the Suffolk Bar, at Cambridge, on February 4, 
1901, the centennial anniversary of the inau- 



ways been in Virginia. The first twenty 
years of his life were passed in that part 
of Prince William County which became, 
a few years after Marshall's birth, the 
new, wide-spreading, frontier county of 
Fauquier, — so named, after a Virginia 
fashion, from the new royal governor of 
1758. He was born in the eastern part 
of it, and after ten years, or so, lived in 
the western jiart, at Oakhill and in the 
neighborhood, just under the Blue Ridge. 

guration of Chief Justice Marshall. The con- 
sideration of the legal side of this great man 
is necessarily omitted here. 



John Marshall. 



They show you still at Midland, on the 
Southern Railroad, a little south of Ma- 
nassas, a small, rude heap of bricks and 
rubbish, as being all that is left of the 
house where Marshall was born ; and 
children on the farm reach out to you a 
handful of the bullets with which that 
sacred spot and the whole region were 
thickly sown, before a generation had 
passed, after his death. Marshall's edu- 
cation was got from his father, from 
such teachers as the neighborhood fur- 
nished, and, for about a year, at a school 
in Westmoreland County, where his fa- 
ther and George Washington had attend- 
ed, and where James Monroe was his own 
schoolmate. 

His father, Thomas Marshall, — great- 
grandson of John Marshall, a Royalist 
captain of cavahy, who had come to Vir- 
ginia in 1650, — a man of good stock, of 
a cultivated mind, enterprise, and strong 
character, had been a neighbor and friend 
of Washington in Westmoreland County, 
on the Potomac, where both were born ; 
and had served under him as a surveyor 
of the estates of Lord Fairfax, and after- 
wards as an officer in the French War 
and the War of Independence. He be- 
came colonel of a Continental regiment, 
in which his son John was a lieutenant, 
and afterwards a captain ; and Colonel 
Marshall showed distinguished capacity 
and courage. John Marshall loved and 
admired him, and declared him to be a 
far abler man than any of his sons. He 
took great care in the education of his 
children, among whom John was the old- 
est of fifteen. His wife, Mary Randolph 
Keith, was the daughter of a Scotch 
clergyman, who had married one of that 
Randolph family so famous in the his- 
tory of Virginia. As I have said, all his 
later youth was passed in the mountain 
region, under the Blue Ridge. Judge 
Story declared that it was to the hardy, 
athletic habits of his youth among the 
mountains, operating, we may well con- 
jecture, upon a happy physical inherit- 
ance, " that he probably owed that robust 



and vigorous constitution which carried 
him almost to the close of his life with 
the freshness and firmness of manhood." 

The farmhouse that Marshall's father 
built at Oakhill is still standing, an un- 
pretending, small, frame building, having 
connected with it now, as a part of it, 
another house built by Marshall's son 
Thomas. At one time the farm com- 
prised an estate of six thousand acres. 
Since 1865 it has passed out of the hands 
of the family. It is beautifully placed 
on high, rolling ground, looking over a 
great stretch of fertile country, and 
along the chain of the Blue Ridge, close 
by. To this region, where his children 
and kindred lived, about a hundred 
miles from Richmond, Marshall de- 
lighted to resort in the summer, all his 
life long. In the autumn of 1807, after 
the Burr trial, he writes to a friend, 
" The day after the commitment of Colo- 
nel Burr for a misdemeanor, I galloped 
to the mountains." " I am on the wing," 
he writes to Judge Story in 1828, " for 
my friends in the upper country, where 
I shall find rest and dear friends, oc- 
cupied more with their farms than with 
party politics." 

When Marshall was about eighteen 
years old he began to study Blackstone ; 
but he quickly dropped it, for the troubles 
with Great Britain thickened, and, like 
his neighbors, he prepared for fighting. 
The earliest personal description of Mar- 
shall that we have belongs to this period- 
It is jjreserved in Horace Binney's ad- 
mirable address at Philadelphia, after 
Marshall's death. He gives it from the 
pen of an eyewitness, a " venerable kins- 
man " of Marshall. News had come, in 
May, 1775, of the fighting at Concord 
and Lexington. The account shows us 
the youth, as lieutenant, drilling a com- 
pany of soldiers in Fauquier County : — 

" He was about six feet high, straight, 
and rather slendei", of dark complexion, 
showing little if any rosy red, yet good 
health, the outline of the face nearly a 
circle, and, within that, eyes dark to 



John Marshall. 



blackness, strong and penetrating, beam- 
ing with intelligence and good nature ; 
an upright forehead, rather low, was ter- 
minated in a horizontal line by a mass 
of raven-black hair, of unusual thickness 
and strength. The features of the face 
were in harmony with this outline, and 
the temples fully developed. Tlie result 
of this combination was interesting and 
very agreeable. The body and limbs in- 
dicated agility rather than strength, in 
which, however, he was by no means de- 
ficient. He wore a purple or pale blue 
hunting shirt, and trousers of the same 
material fringed with white. A round 
black hat, mounted with the buck's tail 
for a cockade, crowned the figure and 
the man. He went through the manual 
exercise by word and motion, deliberate- 
ly pronounced and performed in the pre- 
sence of the company, before he required 
the men to imitate him ; and then pro- 
ceeded to exercise them with the most 
perfect temper. . . . 

" After a few lessons the company 
were dismissed, and informed that if 
they wished to hear more about the war, 
and would form a circle about him, he 
would tell them what he understood about 
it. The circle was formed, and he ad- 
dressed the company for something like 
an hour. He then challenged an ac- 
quaintance to a game of quoits, and they 
closed the day with foot races and other 
athletic exercises, at which there was no 
betting." 

"This," adds Mr. Binney, "is a jjor- 
trait, my fellow citizens, to which, in sim- 
plicity, gayety of heart, and manliness 
of spirit, in everything but the symbols 
of the youthful soldier, and one or two 
of those lineaments which the hand of 
time, however gentle, changes and per- 
haps improves, he never lost his resem- 
blance. All who knew him well will 
recognize its truth to nature." 

In the war, Marshall served, as might 
be expected, with courage and fidelity. 
He was in the first fighting in Virginia, 
which was in the fall of 1775. at Nor- 



folk ; afterwards he served in New Jer- 
sey, Pennsylvania, and New York ; and 
again in Virginia, toward the end of 
the war. He was at Valley Forge, in 
the fighting at the Brandywine, Ger- 
mantown, Monmouth, Stony Point, and 
Powles Hook, between 1776 and 1779. 
He served often as judge advocate, and 
in this way was brought into personal re- 
lations with Washington and Hamilton. 
A fellow officer and messmate describes 
him. during the dreadful winter at Val- 
ley Forge, as neither discouraged nor dis- 
turbed by anything, content with what- 
ever turned up, and cheering everybody 
by his exuberance of spirits and " his in- 
exhaustible fund of anecdote." He was 
" idolized by the soldiers and his brother 
officers." 

President Quincy gives us a glimpse 
of him at this period, as he heard him 
described at a dinner with John Randolph 
and a large company of Virginians and 
other Southern gentlemen. They were 
talking of Marshall's early life and his 
athletic powers. " It was said," he re- 
lates, " that he surpassed any man in the 
army : that when the soldiers were idle 
at their quarters, it was usual for the 
officers to engage in matches at quoits, 
or in jumping and racing ; that he would 
throw a quoit farther, and beat at a race 
any other ; that he was the only man 
who, with a running jump, could clear a 
stick laid on the heads of two men as 
tall as himself. On one occasion he ran 
in his stocking feet with a comrade. His 
mother, in knitting his stockings, had the 
legs of blue yarn and the heels of white. 
This circumstance, combined with his 
uniform success in the race, led the sol- 
diei'S, who were always present at these 
races, to give him the sobrajuet of ' Sil- 
ver-Heels,' the name by which he was 
generally known among them." 

Toward the end of 1779, owing to the 
disbanding of Virginia troops at the end 
of their term of service, he was left with- 
out a command, and went to Virginia to 
await the action of the leoislatui"e as to 



John Marshall, 



raising new troops. It was a fortunate 
visit ; for at Yorktown he met the young 
girl who, two or three years later, was 
to become his wife ; and he was also 
able to improve his leisure by attending, 
for a few months in the early part of 
1780, two courses of lectures at the col- 
lege, on law and natural philosophy. This 
was all of college or university that he 
ever saw ; but later he received their 
highest honors from several universities. 
Harvard made him doctor of laws in 
1806. Marshall's opportunity for study- 
ing law, under George Wythe, at Wil- 
liam and Mary College, seems to have 
been owing to a change in the curricu- 
lum, made, just at that time, at the in- 
stance of Jefferson, governor of the state, 
and, in that capacity, visitor of the col- 
lege. The chair of divinity had just 
been abolished, and one of law and po- 
lice, and another of medicine, were sub- 
stituted. And on December 29 the fac- 
ulty voted that, " for the encouragement 
of science, a student, on paying annu- 
ally 1000 pounds of tobacco, shall be 
entitled to attend any school of the fol- 
lowing Professors, viz. : of Law and Po- 
lice ; of Natural Philosophy and Mathe- 
matics," etc. Marshall chose the two 
courses above named ; he must have been 
one of the very first to avail himself of 
this new privilege. He remained only 
one term. In view of what was to hap- 
pen by and by, it is interesting to ob- 
serve that his opportunity for an edu- 
cation in law came, thus, through the 
agency of Thomas Jefferson. 

The records of the Phi Beta Kappa So- 
ciety at William and Mary College, where 
that now famous society had originated 
less than a year and a half before, show 
that on the 18th of May, 1780, " Cap- 
tain John Marshall, being i-ecommended 
as a gentleman who would make a worthy 
member of the society, was balloted for 
and received ; " and three days later he 
was appointed, with others, " to declaim 
the question whether any form of gov- 
ernment is more favorable to public vir- 



tue than a Commonwealth." Bushrod 
Washington and other well-known names 
are found among his associates in this 
chapter, which has been well called " an 
admirable nursery of patriots and states- 
men." 

It was in the summer of 1780 that 
Marshall was licensed to practice law. 

During this visit to Virginia, as I have 
said, he met at Yorktown the little lady, 
fourteen years old, who was to become 
his wife three years later, and the mo- 
ther of his ten children,^ and was to re- 
ceive from him the most entire devotion 
until the day of her death at Christinas, 
in 1831. Some letters of her older sis- 
ter, Mrs. Carrington, written to another 
sister, have lately been printed, which 
give us a glimpse of Captain Marshall in 
liis twenty-fifth year. These ladies were 
the daughters of Jaquelin Ambler, for- 
mei'ly collector of customs at Yorktown, 
and then treasurer of the colony, and 
living in that town, next door to the fam- 
ily of Colonel Marshall. Their mother 
was that Rebecca Bur well for whom, un- 
der the name of " Belinda," Jefferson 
had languished, in his youthful corre- 
spondence of some twenty years before. 
The girls had often heard the captain's 
letters to his family, and had the high- 
est exjjectations when they learned that 
he was coming home from the war. They 
were to meet him first at a ball, and were 
contending for the prize beforehand. 
Mary, the youngest, carried it off. " At 
the first introduction," writes her sister, 
who was but one year older, " he became 
devoted to her." " For my own part," 
she adds, " I felt not the smallest wish 
to contest the prize with her. . . . She, 
with a glance, divined his character, . . . 
while I, expecting an Adonis, lost all de- 
sire of becoming agreeable in his eyes 
when I beheld his awkward, unpolished 
manner and total negligence of person. 
How trivial now seem all such objec- 
tions ! " she exclaims, writing in 1810, 
and going on to speak with the utmost 
^ Only six of his ehildreu grew to full age. 



John Marshall. 



admiration of his relations to herself and 
all her family, and, above all, to his wife. 
'' His exemplary tenderness to our unfor- 
tunate sister is without parallel. With 
a delicacy of frame and feeling that baf- 
fles all description, she became, early af- 
ter her mai'riage, a prey to extreme ner- 
vous affection, which, more or less, has 
embittered her comfort through her 
whole life ; but this has only seemed to 
increase his care and tenderness, and he 
is, as you know, as entirely devoted as 
at the moment of their first being mar- 
ried. Always and under every circum- 
stance an enthusiast in love, I have 
very lately heard him declare that he 
looked with astonishment at the present 
race of lovers, so totally unlike what he 
had been himself. His never failing 
cheerfulness and good humor are a per- 
petual source of delight to all connected 
with him, and, I have not a doubt, have 
been the means of prolonging the life of 
her he is so tenderly devoted to." 

" He was her devoted lover to the very 
end of her life," another member of his 
family connection has said. And Judge 
Story, in speaking of him after his wife's 
death, described him as " the most ex- 
traordinary man I ever saw for the depth 
and tenderness of his feelings." 

A little touch of his manner to his 
wife is seen in a letter, which is in print, 
written to her from the city of Washing- 
ton, on February 23, 1825, in his seven- 
tieth year. He had received an injury 
to his knee, about which Mrs. Marshall 
was anxious. " I shall be out," he writes, 
" in a few days. All the ladies of the 
secretaries have been to see me, some 
more than once, and have brought me 
more jelly than I could eat, and many 
other things. I thank them, and stick 
to my barley broth. Still I have lots of 
time on my hands. How do you think 
I beguile it ? I am almost tempted to 
leave you to guess, until I write again. 
You must know that I begin with the 
ball at York, our splendid assembly at 
the Palace in Williamsburg, my visit to 



Richmond for a fortnight, my return to 
the field, and the very welcome recep- 
tion you gave me on my arrival at Dover, 
our little tiffs and makings-up, my feel- 
ings when Major A. was courting you, 
my trip to the Cottage [the Ambler home 
in Hanover County, where the marriage 
took place], — the thousand little inci- 
dents, deeply affecting, in turn." 

This " ball at York " was the one of 
which Mrs. Carrington wrote ; and of 
the '• assembly at the Palace " she also 
gave an account, remarking that " Mar- 
shall was devoted to my sister." 

Miss Martineau, who saw him the year 
before he died, speaks with great empha- 
sis of what she calls his '' reverence " 
and his affectionate respect for women. 
There were many signs of this all 
through his life. Even in the grave 
and too monotonous course of his Life 
of Washington, one comes now and then 
upon a little gleam of this sort, that 
lights up the page ; as when he speaks 
of Washington's engagement to Mrs. 
Custis, a lady " who to a large fortune 
and a fine person added those amiable 
accomplishments which . . . fill with 
silent but unceasing felicity the quiet 
scenes of private life." When he is re- 
turning from France, in 1798, he writes 
gayly back from Bordeaux to the Secre- 
tary of Legation at Paris : " Present me 
to my friends in Paris ; and have the 
goodness to say to Madame Vilette, in 
my name and in the handsomest man- 
ner, everything which respectful friend- 
ship can dictate. When you have done 
that, you will have rendered not quite 
half justice to my sentiments." "He 
was a man," said Judge Story, " of deep 
sensibility and tenderness ; . . . what- 
ever may be his fame in the eyes of the 
world, that which, in a just sense, was 
his brightest glory was the purity, affec- 
tionateness, liberality, and devotedness 
of his domestic life." 

Marshall left the army in 1781, when 
most of the fighting in Virginia was over ; 
he began practice in Fauquier County, 



John Marshall. 



when the courts were opened, after Corn- 
wallis's surrender, in October of that 
year. 

Among his neighbors he was always 
a favorite. In the spring of 1782 he 
was elected to the Assembly, and in the 
autumn to the important office of member 
of the Executive Council. "■ Young Mr. 
Marshall," wrote Edmund Pendleton, 
presiding judge of the Court of Ap- 
peals, to Madison, in November of that 
year, " is elected a councilor. . . . He 
is clever, but I think too young for that 
department, which he should rather have 
earned, as a retirement and reward, by 
ten or twelve years of hard service." 
But, whether young or old, the people 
were forever forcing him into public life. 
Eight tinv's he was sent to the Assem- 
bly ; in 1788 to the Federal Convention 
of Virginia, and in 1798 to Congress. 
Add to this his service as envoy to France 
in 1797-1798, and as Secretary of State 
in 1800-1801. 

Unwelcome as it was to him, almost 
always, to have his brilliant and congen- 
ial place and prospects at the bar thus 
interfered with, we can see now what 
an admirable preparation all this was 
for the great station for which, a little 
later, to the endless benefit of his coun- 
try, he was destined. What drove him 
into office so often was, in a great de- 
gree, that deliglitful and remarkable 
combination of qualities which made 
everybody love and trust him, even his 
political adversaries, so that he could be 
chosen when no one else of his party 
was available. In this way, happily for 
his country, he was led to consider, early 
and deeply, those difficult problems of 
government that distressed the country 
in the dark period after the close of the 
war, and during the first dozen years of 
the Federal Constitution. 

As regards the effect of his earlier 
experience in enlarging the circle of a 
patriot's thoughts and affections, he him- 
self has said : " I am disposed to as- 
cribe my devotion to the Union, and to 



a government competent to its preserva- 
tion, at least as much to casual circum- 
stances as to judgment. I had grown up 
at a time . . . when the maxim ' United 
we stand, divided we fall ' was the maxim 
of every orthodox American ; and I had 
imbibed these sentiments so thoroughly 
that they constituted a part of my being. 
I carried them with me into the army, 
where I found myself associated with 
brave men from different states who were 
risking life and everything valuable in a 
common cause, . . . and where I was 
confirmed in the habit of considering 
America as my country and Congress as 
my government." It was this confirmed 
" habit of considering America as my 
country," communicated by him to his 
countrymen, which enabled them to car- 
ry through the great struggle of forty 
years ago, and to save for us all, North 
and South, the inestimable treasure of 
the Union. 

After Marshall's marriage, in Janu- 
ary, 1783, he made Richmond his home 
for the rest of his life. It was still a 
little town, but it had lately become the 
capital of the state, and the strongest 
men at the bar gradually gathered there. 
Marsliall met them all. One has only 
to look at the law reports of Call and 
Washington to see the place that he 
won. He is found in most of the im- 
portant cases. In his time no man's 
name occurs oftener, probably none so 
often. 

At first, he had brought from the 
army, and from his home on the fron- 
tier, simple and rustic ways which sur- 
prised some persons at Richmond, whose 
conception of greatness was associated 
with very different models of dress and 
behavior. " He was one morning stroll- 
ing," we are told, " through the streets 
of Richmond, attired in a plain linen 
roundabout and shorts, with his hat un- 
der his arm, from which he was eating 
cherries, when he stopped in the porch 
of the Eagle Hotel, indulged in a little 
pleasantry with the landlord, and then 



John Marshall. 



passed on." A gentleman from the 
country was present, who had a case 
coming on before the Court of Appeals, 
and was referred by the landlord to 
Marshall as the best lawyer to employ. 
But " the careless, languid air " of Mar- 
shall had so prejudiced the man that he 
refused to employ him. The clerk, when 
this client entered the court room, also 
recommended Marshall, but the other 
would have none of him. A venerable- 
looking lawyer, with j^owdered wig and 
in black cloth, soon entered, and the gen- 
tleman engaged him. In the first case 
that came up, this man and Marshall 
spoke on opposite sides. The gentleman 
listened, saw his mistake, and secured 
Marshall at once ; frankly telling him 
the whole story, and adding that while 
he had come with one hundred dollars 
to pay his lawyer, he had but five dollars 
left. Marshall good-naturedly took this, 
and helped in the case. In the Virginia 
Federal Convention of 1788, at the age 
of thirty-three, he is described, rising 
after Monroe had spoken, as " a tall 
young man, slovenly dressed in loose 
summer apparel. . . . His manners, like 
those of Monroe, were in strange con- 
trast with those of Edmund Randolph 
or of Grayson." 

In such stories as these, one is re- 
minded, as he is often reminded, of a 
resemblance between Marshall and Lin- 
coln. Very different men they were, 
but both thorough Americans, with un- 
borrowed character and manners, and a 
lifelong flavor derived from no other 
soil. 

At the height of Marshall's reputa- 
tion, in 1797, a French writer, who had 
visited Riclmiond lately, in speaking of 
Edmund Randolph, says, '• He has a 
great practice, and stands, in that re- 
spect, nearly on a par with Mr. J. Mar- 
shall, the most esteemed and celebrated 
counselor of this town." He mentions 
Marshall's annual income as being four 
or five thousand dollars. " Even by his 
friends," it is added, " he is taxed with 



some little propensity to indolence, but 
he nevertheless displays great superiority 
when he applies his mind to business." 
Another contemporary, who praises his 
force and eloquence in speaking, yet 
says : " It is difficult to rouse his facul- 
ties. He begins with reluctance, hesi- 
tation, and vacancy of eye. . . . He re- 
minds one of some great bird, which 
flounders on the earth for a while before 
it acquires impetus to sustain its soaring 
flight." And finally, William Wirt, who 
was seventeen years Marshall's junior, 
and came to the bar in 1792, when Mar- 
shall was nearly at the head of it, writ- 
ing anonymously in 1804, describes him 
as one " who, without the advantage of 
person, voice, attitude, gesture, or any of 
the ornaments of an orator, deserves to 
be considered as one of the most eloquent 
men in the world." He attributes to 
him " one original and almost su^iernat- 
ural faculty, ... of developing a sub- 
ject by a single glance of his mind. . . . 
His eyes do not fly over a landscape 
and take in its various objects with more 
promptitude and facility than his mind 
embraces and analyzes the most complex 
subject. . . . All his eloquence consists 
in the apparently deep self-conviction 
and the emphatic earnestness and en- 
ergy of his style, the close and logical 
connection of his thoughts, and the easy 
gradations by which he opens his lights 
on the attentive minds of his hearers." 

In 1795 he declined the office of 
Attorney General of the United States, 
and in 1796 that of Minister to France, 
both offered him by Washington. When 
President Adams persuaded him in 1797 
to go. with Pinckney and Gerry, as envoy 
to France, he wrote to Gerry of " General 
Marshall " (as he was then called, from 
his rank of brigadier general, since 1793. 
in the Virginia militia), " He is a plain 
man, very sensible, cautious, guarded, 
and learned in the law of nations." The 
extraordinary details of that unsuccess- 
ful six months' attempt to come to terms 
with France are found in Marshall's 



John Marshall. 



very able dispatches and in the diary 
which he kept ; for, with the instinct of 
a man of affairs, he remembered that " a 
note is worth a cartload of recollections." 
His own part in the business was marked 
by great moderation and ability, and on 
his return, in 1798, he was received at 
Philadelphia with remarkable demon- 
strations and the utmost enthusiasm. A 
correspondent of Rufus King, writing 
from New York in July of that year, says, 
" No two men can be more beloved and 
honored than Pinckney and Marshall ; " 
and again in November : " Saving Gen- 
eral Washington, I believe the Presi- 
dent, Pinckney, and Marshall are the 
most popular characters now in our coun- 
try. There is a certain something in the 
correspondence of Pinckney and Mar- 
shall . . . that has united all heads and 
hearts in their eulogy." It is understood 
that the cori-espondence was by Marshall. 
Gerry had allowed himself in a measure 
to be detached by the Directory from 
liis associates, to their great displeasure. 
With them, in important resjiects, he 
disagreed. 

It was in 1798 that Adams offered to 
Marshall the seat on the Supreme Bench, 
made vacant by the death of James Wil- 
son. He declined it ; and it went to his 
old associate at William and Mary Col- 
lege, Bushrod Washington. Marshall 
did yield, however, to General Washing- 
ton's urgent request to stand for Congress 
that year ; and apparently it was for a 
consultation on this question that he went 
to Mount Vernon, in the summer, in com- 
pany with the coming judge. On their 
way they met with a misadventure which 
gave great amusement to Washington, 
and of which he enjoyed telling his 
friends. They came on horseback, and 
carried but one pair of saddlebags, each 
using one side. Arriving thoroughly 
drenched by rain, they were shown to a 
chamber to change their garments. One 
opened his side of the bags and drew 
forth a black bottle of whiskey. He in- 
sisted that he had opened his compan- 



ion's repository. Unlocking the other 
side, they found a big twist of tobacco, 
some corn bread, and the equipment of 
a pack saddle. They had exchanged 
saddlebags with some traveler, and now 
had to appear in a ludicrous misfit of 
borrowed clothes. 

The election of Marshall to Congress 
excited great interest. AVashington 
heartily rejoiced in it. Jefferson, on the 
other hand, remarked that while Mar- 
shall might trouble the Republicans some- 
what, yet he would now be unmasked. 
He had been popular with the mass of 
the people, Jefferson said, from his " lax, 
lounging manners," and with wiser men 
through a " profound hypocrisy." But 
now his British principles would stand 
revealed. 

The New England Federalists were 
very curious about him ; they had been 
alarmed and outraged, during the cam- 
paign, by his expressing opposition to the 
alien and sedition laws ; but they were 
much impressed by him. Theodore Sedg- 
wick wrote to Rufus King that he had 
" great powers, and much dexterity in 
the application of them. . . . We can do 
nothing without him." But Sedgwick 
wished that " his education had been on 
the other side of the Delaware." George 
Cabot wrote to King : " General Marshall 
is a leader. . . . But you see in him the 
faults of a Virginian. . . . He thinks too 
much of that state, and he expects that 
the world will be governed by rules of 
logic." But Cabot hopes to see him im- 
prove, and adds, " He seems calculated 
to act a great part." In the end, the 
Northern Federalists were disappointed 
in finding him too moderate. He held 
the place of leader of the House, and 
passed into the Cabinet in May, 1800 ; 
and on January 31, 1801, he \ras com- 
missioned as Chief Justice. 

Very soon after entering upon his 
duties as Chief Justice he undertook to 
write the Life of Washington. This 
gave him a great deal of trouble and 
mortification. It proved to be an im- 



John Marshall. 



9 



meiise labor ; the publishers were im- 
portunate, and he was driven into print 
before he was ready. The result was a 
work in five volumes, appearing from 
1802 to 1804, full of the most valuable 
and authentic material, well repaying pe- 
rusal, yet put together with singular lack 
of literary skill, and in many ways a great 
disappointment. In the later years of his 
life, he revised it, corrected some errors, 
shortened it, and published it in three 
volumes : one of them as a sej^arate pre- 
liminary history of the colonial period, 
and the other two as the Life of Wash- 
ington. This work, in its original form, 
gave great offense to Jefferson, written, 
as it was, from the point of view of a 
constant admirer and supporter of the 
policy of Washington ; a " five volume 
libel," Jefferson called it. 

Jeft'erson had a ludicrous misconcep- 
tion as to Marshall's real character. Re- 
ferring in 1810 to the " batture " case, 
in V7hich Edward Livingston sued him, 
and which was to come before Marshall, 
he says that he is certain what the result 
of the case should be, but nobody can tell 
what it will be ; for " the Judge's mind 
[is] of that gloomy malignity which will 
never let him forego the opportunity of 
satiating it upon a victim. . . . And to 
whom is my appeal ? From the judge 
in Burr's case to himself and his associ- 
ate justices in Marbury v. Madison. Not 
exactly, however. I observe old Gushing 
is dead. [Judge Gushing had died a 
fortnight before.] At length, then, we 
have a chance of getting a Republican 
majority in the Supreme Judiciary." 
And he goes on to express his confi- 
dence in the " appointment of a decided 
Republican, with nothing equivocal about 
him." 

Who was to be this decided and un- 
equivocal Republican ? Jefferson was 
anxious about it, and wrote to Madison, 
suggesting Judge Tyler, of Virginia, and 
reminding the President of Marshall's 
" rancorous hostility to his country." 
Who was it, in fact, that was appointed ? 



Who but Joseph Story ! — a Republican, 
indeed, but one whom Jefferson, in this 
very year, was designating as a " pseudo- 
Republican," and who soon became Mar- 
shall's warmest admirer and most faith- 
ful su^jporter. 

In those efforts on the part of some 
of the leaders of Virginia and the South, 
early in the century, to riil themselves of 
slavery, to which we at the North have 
never done sufficient justice, Marshall 
took an active part. The American Col- 
onization Society was organized in 1816 
or 1817, with Bushrod Washington for 
president. In 1823 an auxiliary society 
was organized at Richmond, of which 
Marshall was president, an office which 
he held nearly or quite up to the time of 
his death. It is interesting to observe 
that one of the plans for colonization 
was to have worked out the abolition of 
slavery in Virginia in the year 1901. 
Of slavery Marshall wrote to a friend, 
in 1826 : "I concur with you in think- 
ing that nothing portends more calamity 
and mischief to the Southern states than 
their slave population. Yet they seem 
to cherish the evil, and to view with im- 
movable prejudice and dislike every- 
thing which may tend to diminish it. I 
do not wonder that they should resist 
any attempt, should one be made, to 
interfere with the rights of property, but 
they have a feverish jealousy of mea- 
sures which may do good without the 
hazard of harm, that, I think, very un- 
wise." 

As to Marshall's religious affiliations, 
he was a regular and devoted attendant, 
all his life, of the Episcopal church, in 
which he was brought up ; taking an ac- 
tive part in the services and the responses, 
and kneeling in prayer, we are told, even 
when the pews were so narrow that his 
tall form had to be accommodated by 
the projection of his feet into the aisle. 
His friend, Bishop Meade, the Episco- 
pal bishop of Virginia, states that he 
was never a communicant in that church ; 
and he quotes a letter from an Episcopal 



10 



John Marshall. 



clergyman who often visited Mrs. Har- 
vie, Marshall's only daughter, in her last 
illness, and who reports from her the 
statement that, during the last months of 
his life, he told her the reason that he 
had never joined the Episcopal church, 
namely, that he was a Unitarian in opin- 
ion. It is added, however, in the same 
letter, that Mrs. Harvie, a person " of the 
strictest probity, the most humble jjiety, 
and the most clear and discriminating 
mind," also said that, during these last 
months, Marshall read Keith on Prophe- 
cy, and was convinced by that work, and 
the fuller investigation to which it led, 
of the Supreme Divinity of Jesus, and 
wished to commune, but tliought it his 
duty to do it publicly ; and while waiting 
for the opportunity, died. 

The reader of such a statement seems 
to perceive or to conjecture an anxiety 
to relieve the memory of the Chief Jus- 
tice of an opprobrium. Whatever the 
exact fact may be about this late change 
in opinion, we, in tlie latitude of New 
England, are not likely to be surprised 
or shocked that Marshall shared, during 
his active life, the speculative opinions of 
his friend Judge Story. 

We often hear of the Chief Justice 
at his " Quoit Club." He was a fa- 
mous player at quoits. A club had been 
formed by some of the early Scotch set- 
tlers of Richmond, and it came to in- 
clude among its members leading men 
of the city, such as Marshall, Wirt, 
Nicholas, Call, Munford, and others. 
Chester Harding, the artist who painted 
the full-length portrait of Marshall that 
hangs in the Harvard Law School, tells 
us of seeing him at the Quoit Club. For- 
tunately, language does not, like paint, 
limit the artist to a single moment of 
time. He gives us the Chief Justice in 

^ In speaking of this same Club, Mr. G. W. 
Munford says : " We have seen Mr. Marshall, 
in later times, when he was Chief Justice of 
the United States, on his hands and knees, with 
a straw and a penknife, the blade of the knife 
stuck through the straw, holding it between 

VOL. LXXXVII. — NO. 521. 22 



action. Marshall was then attending 
the Virginia Constitutional Convention, 
which sat from October, 1829, to Janu- 
ary, 1830. The Quoit Club used to 
meet every week in a beautiful grove, 
about a mile from the city. Harding 
went early. " I watched," he says, 
'' for the coming of the old chief. He 
soon approached, with his coat on his 
arm and his hat in his hand, which he 
was using as a fan. He walked directly 
up to a large bowl of mint julep, which 
had been prepared, and drank off a tum- 
blerful of the liquid, smacked his lijjs, 
and then turned to the company with 
a cheerful ' How are you, gentlemen ? ' 
He was looked upon as the best pitcher 
of the party, and could throw heavier 
quoits than any other member of the 
Club. The game began with great ani- 
mation. There were several ties ; and 
before long I saw the great Chief Justice 
of the United States down on his knees, 
measuring the contested distance with a 
straw, with as much earnestness as if it 
had been a point of law ; and if he 
proved to be in the right, the woods 
would ring with his triumphant shout." ^ 
An entertaining account has been pre- 
served ^ of a meeting of the Club, held, 
apparently, while Marshall was still at 
the bar, at which he and Wickham — a 
leading Virginia lawyer, one of the coun- 
sel of Aaron Burr — were the caterers. 
At the table Marshall announced that at 
the last meeting two members had in- 
troduced politics, a forbidden subject, 
and had been fined a basket of cham- 
pagne, and that this was now produced, 
as a warning to evil doers ; as the Club 
seldom drank this article, they had no 
champagne glasses, and must drink it in 
tumblers. Those who played quoits re- 
tired, after a while, for a game. Most 

the edge of the quoit and the hub ; and when it 
was a very doubtful question, pinching or biting 
off the ends of the straw, until it would fit to 
a hair." 

- In The Two Parsons, by G. W. Munford. 



John Marshall. 



11 



of the members had smooth, highly 
polished brass quoits. But Marshall's 
were large, rough, heavy, and of iron, 
such as few of the members could throw 
well from hub to hub. Marshall him- 
self threw them with great success and 
accuracy, and often "rang the meg." 
On this occasion Marshall and the Rev. 
Mr. Blair led the two pai'ties of players. 
Marshall played first, and rang the 
meg. Parson Blair did the same, and 
his quoit came down plumply on top of 
Marshall's. There was uproarious ap- 
plause, which drew out all the others 
from the dinner ; and then came an an- 
imated controversy as to what should 
be the effect of this exploit. They all 
returned to the table, had another bot- 
tle of champagne, and listened to argu- 
ments : one from Marshall for his view, 
and one from Wickham for Parson 
Blair. The company decided against 
Marshall. His argument is a humor- 
ous companion piece to any one of his 
elaborate judicial opinions. He began 
by formulating the question, " Who is 
winner when the adversary quoits are 
on the meg at the same time ? " He 
then stated the facts, and remarked 
that the question was one of the true 
construction and application of the rules 
of the game. The one first ringing the 
meg has the advantage. No other one 
can succeed who does not begin by dis- 
placing this first one. The parson, he 
willingly allowed, deserves to rise higher 
and higher in everybody's esteem ; but 
then he must n't do it by getting on an- 
other's back in this fashion. That is 
more like leapfrog than quoits. Then, 
again, the legal maxim is, Cifjus est 
solum, ejus est usque ad caelum. His 
own right as first occupant extends to 
the vault of heaven ; no opponent can 
gain any advantage by squatting on his 
back. He must either bring a writ of 
ejectment, or drive him out vi et armis. 
And then, after further argument of the 
same sort, he asked judgment, and sat 
down amidst great applause. 



Mr. Wickham then rose, and made an 
argument of a similar pattern. No rule, 
he said, requires an impossibility. Mr. 
Marshall's quoit is twice as large as any 
other ; and yet it flies from his arm like 
the iron ball at the Grecian games from 
the arm of Ajax. It is an iron quoit, un- 
polished, jagged, and of enormous weight. 
It is impossible for an ordinaiy quoit to 
move it. With much more of the same 
sort, he contended that it was a drawn 
game. After very animated voting, de- 
signed to keep up the uncertainty as 
long as possible, it was so decided. An- 
other trial was had, and Marshall clear- 
ly won. 

All his life he played this game. 
There is an account of a country barbe- 
cue in the mountain region, where a cas- 
ual guest saw an old man emerge from 
a thicket which bordered a brook, car- 
rying a- pile of flat stones as high as 
he could hold between his right arm 
and his chin. He stepped briskly up 
to the company and threw them down. 
" There ! Here are quite enough for 
us all." 

Of Marshall's simple habits, remarka- 
ble modesty, and engaging simplicity of 
conduct and demeanor, every one who 
knew him speaks. " What was it in 
him which most impressed you ? " asked 
one of his descendants, now a distin- 
guished judge, of an older relative who 
had known him. " His humility," was 
her answer. " With Marshall," wrote 
President Quincy, "I had considerable 
acquaintance during the eight years I 
was member of Congress, from 1805 to 
1813, played chess with him, and never 
failed to be impressed with the frank, 
cordial, childlike simplicity and unpre- 
tending manner of the man, of whose 
strength and breadth of intellectual power 
I was . . . well apprised." 

*' Nothing was more usual," we are 
told, as regards his life in Richmond, 
" than to see him returning from mar- 
ket, at sunrise, with poultry in one hand 
and a basket of vegetables in the other." 



12 



John Marshall. 



And again, some one speaks of meeting 
him on horseback, at sunrise, with a bag 
of seeds before him, on his way to his 
farm, three or four miles out of town. 
This was the farm at which, as he writes 
to James Monroe, his old friend and 
schoolmate, " I pass a considei-able por- 
tion of my time in laborious relaxation.'" 
The Italics are his own. 

In speaking of Marshall's personal 
qualities and ways, I must quote from 
the exquisite passages in Judge Story's 
address, delivered in the fall of 1835, to 
the Suffolk Bar, in which his own true 
affection found expression: "Uijon a 
first introduction he would be thought to 
be cold and reserved ; but he was nei- 
ther the one nor the other. It was sim- 
ply a habit of easy taciturnity, watching, 
as it were, his own turn to follow the 
line of conversation, and not to presume 
to lead it. . . . Meet him in a stage- 
coach as a stranger, and travel with him 
a whole day, and you would only be 
struck with his readiness to administer 
to the accommodation of others, and his 
anxiety to appropriate least to himself. 
Be with him the unknown guest at an 
inn, and he seemed adjusted to the very 
scene ; partaking of the warm welcome 
of its comforts, whenever found ; and if 
not found, resigning himself without 
complaint to its meanest arrangements. 
He had great simplicity of character, 
manners, dress, and depoi-tment, and yet 
with a natural dignity that suppressed 
impertinence and silenced rudeness. His 
simplicity . . . had an exquisite naivete, 
which charmed every one, and gave a 
sweetness to his familiar conversation 
approaching to fascination. The first 
impression of a stranger, upon his intro- 
duction to him, was generally that of dis- 
appointment. It seemed hardly credible 
that such simplicity should be the accom- 
paniment of such acknowledged great- 
ness. The consciousness of power was 
not there ; the air of office was not there ; 

^ Some of my readers will thank me for say- 
hig that the dealer who furnishes this portrait 



there was no play of the lights or shades 
of rank, no study of effect in tone or 
bearing." 

Of Marshall's appearance on the bench 
we have a picture in one of Story's let- 
ters from Washington, while he was at 
the bar. He is writing in 1808, the 
year after the Burr trial. " Marshall," 
he says, "is of a tall, slender figure, 
not graceful or imposing, but erect and 
steady. His hair is black, his eyes small 
and twinkling, his forehead rather low, 
but his features are in general harmo- 
nious. His manners are I3lain, yet dig- 
nified ; and an unaffected modesty dif- 
fuses itself through all his actions. His 
dress is very simple, yet neat ; his lan- 
guage chaste, but hardly elegant ; it does 
not flow rapidly, but it seldom wants 
precision. In conversation he is quite 
familiar, but is occasionally embarrassed 
by a hesitancy and drawling. ... I love 
his laugh, — it is too hearty for an in- 
triguer, — and his good temper and un- 
wearied patience are equally agreeable 
on the bench and in the study." 

Daniel Webster, in 1814, wrote to his 
brother : " There is no man in the court 
that strikes me like Marshall. He is a 
plain man, looking very much like Colo- 
nel Adams, and about three inches taller. 
I have never seen a man of whose intel- 
lect I had a higher opinion." 

In the year 1808, when Judge Story 
wrote what has been quoted above, Mar- 
shall was sketched in chalk by St. Me- 
min. It is a beautiful portrait, which its 
present owner, Mr. Thomas Marshall 
Smith, of Baltimore, John Marshall's 
great-grandson, has generously permit- 
ted to be copied for the use of the pub- 
lic.i 

It was in 1830 that Chester Harding, 
the artist, painted for the Boston Athe- 
naeum the full-length portrait of which, 
a little later, he made the replica after- 
wards purchased, by subscription, for the 
Law School. " I consider it," says Hard- 
in photogravure is Mr. C. Klackner, of New 
York. 



John Marshall. 



13 



ing, " a good picture.^ I had great plea- 
sure in painting the whole of such a man. 
. . . When I was ready to draw the fig- 
ure into his picture, I asked him, in order 
to save time, to come to my room in the 
evening. . . . An evening was appoint- 
ed ; but he could not come until after 
the ' consultation,' which lasts until about 
eight o'clock." It will be remembered 
that the judges, at that time, used to 
lodge together, in one house. " It was a 
warm evening," continues Harding, " and 
I was standing on my steps waiting for 
him, when he soon made his appearance, 
but, to my surprise, without a hat. I 
showed him into my studio, and stepped 
back to fasten the front door, when I en- 
countered [several gentlemen] who knew 
the judge very well. They had seen 
him passing by their hotel in his hatless 
condition, and with long strides, as if in 
gi'eat haste, and had followed, curious 
to know the cause of such a strange ap- 
pearance. . . . He said that the consul- 
tation lasted longer than he expected, 
and he hurried off as quickly as jjossible 
to keep his appointment with me." He 
declined the offer of a baton his return. 
" Oh no, it is a warm night ; I shall not 
need one." 

The next year, 1831, was a sad one 
for Marshall. The greatest apprehen- 
sions were felt for his health. " Wirt," 
says John Quincy Adams in his Diary, 
on February 13, 1831, " spoke to me, also, 
in deep concern and alarm at the state 
of Chief Justice Marshall's health." In 
the autumn he went to Philadelphia to 
undergo the torture of the operation of 
lithotomy, before the days of ether. It 
was the last operation performed by the 
distinguished surgeon Dr. Physick. An- 
other eminent surgeon, who assisted him. 
Dr. Randall, has given an account of this 
occasion, in which he says : — 

" It will be readily admitted that, in 

^ The half-length, sitting portrait of Mar- 
shall, in the dining hall at Cambridge, was 
painted by Harding, in 1828, for the Chief Jus- 
tice himself ; and by him given to Judge Story, 



consequence of Judge Marshall's very 
advanced age, the hazard attending the 
operation, however skillfully performed, 
was considerably increased. I consider 
it but an act of justice, due to the mem- 
ory of that great and good man, to state 
that, in my opinion, his recovery was in 
a great degree owing to his extraordi- 
nary self-possession, and to the calm and 
philosophical views which he took of his 
case, and the various circumstances at- 
tending it. 

" It fell to my lot to make the neces- 
sary preparations. In the discharge of 
this duty I visited him on the morning 
of the day fixed on for the operation, 
two hours previously to that at which it 
was to be performed. Upon entering 
his room I found him engaged in eating 
his breakfast. He received me with a 
pleasant smile upon his countenance, 
and said : ' Well, doctor, you find me 
taking breakfast, and I assure you I 
have had a good one. I thought it very 
probable that this might be my last 
chance, and therefore I was determined 
to enjoy it and eat heartily.' I expressed 
the great pleasure which I felt at seeing 
him so cheerful, and said that I hoped 
all would soon be happily over. He 
replied to this that he did not feel the 
least anxiety or uneasiness respecting 
the operation or its results. He said 
that he had not the slightest desire to 
live, laboring under the sufferings to 
which he was then subjected ; that he 
was perfectly ready to take all the 
chances of an operation, and he knew 
there were many against him ; and that 
if he could be relieved by it he was will- 
ing to live out his appointed time, but if 
not, would rather die than hold exist- 
ence accompanied with the pain and 
misery which he then endured. 

" After he finished his breakfast I 
administered to him some medicine ; he 

" to be preserved, when I shall sleep with my 
fathers, as a testimonial of sincere and affec- 
tionate friendship." Story bequeathed it to the 
college. 



LIBRARY OF CONGRESS 



14 



John Marshall. 




then inquired at what hour the opera- 
tion would be performed. I mentioned 
the hour of eleven. He said, ' Very 
well ; do you wish me now for any other 
purpose, or may I lie down and go to 
sleep ? ' I was a good deal surprised at 
this question, but told him that if he 
could sleep it would be very desirable. 
He immediately placed himself upon the 
bed, and fell into a profound sleep, and 
continued so until I was obliged to rouse 
him in order to undergo the operation. 
He exhibited the same fortitude, scarce- 
ly uttering a murmur, throughout the 
whole procedure, which, from the pecul- 
iar nature of his complaint, was neces- 
sarily tedious." 

From the patient over a thousand cal- 
culi were taken. He had a perfect re- 
covery ; nor did the disorder ever return. 
On Christmas Day of that year, as I 
have said, his wife died, the object of his 
tenderest affection ever since he had first 
seen her, more than fifty years before. 

It was at this period, in 1831 and 
1832, that Inman's fine portrait of him, 
now hanging in the Law Institute of 
Philadelphia, was painted, for the bar 
of that city. A replica is on the walls 
of the state library in Richmond, which 
Marshall himself bought for one of his 
sons. This portrait is regarded as the 
best of those painted in his later life. 
Certainly it best answers the description 
of him by an English traveler, who, see- 
ing him in the spring of 1835, remarked 
that "the venerable dignity of his ap- 
pearance would not suffer in compari- 
son with that of the most respected and 
distinguished-looking peer in the British 
House of Lords." 

^ Many a " severe contusion " must he have 
suffered in those primitive days, from upsets 
and jolting's, in driving every year between 
Richmond and Washingion, some 120 miles 
each way; from Richmond to Raleigh and 
back, in attending his North Carolina circuit, 
about 175 miles each way ; and between Rich- 



011 769 495 

After his recovery, in 1831, Marshall 
seems to have been in good health down 
to the early part of 1835. Then, we 
are told, he suffered " severe contu- 
sions " ^ in the stagecoach in returning 
from Washington. His health now rap- 
idly declined. He went again for relief* 
to Philadelphia, and died there on July 
6, 1835, of a serious disorder of the 
liver. He had missed from his bedside 
his oldest son, Thomas, for whom he had 
been asking. Upon the gravestone of 
that son, behind the old house at Oak- 
hill, you may read the pathetic tragedy, 
withheld from his father, that accounts 
for his absence. While hastening to 
Philadelphia, at the end of June, he was 
passing through the streets of Baltimore 
in the midst of a tempest, and was kille(i - - 
by the falling of a chimney in the storm. 
The body of the great Chief Justice 
was carried home with every demonstra- 
tion of respect and reverence. It was 
buried by the side of his wife, in the 
Shockoe Hill Cemetery in Richmond. 
There, upon horizontal tablets, are two 
inscriptions of affecting simplicity, both 
written by himself. The first runs thus : 
"John Marshall, Son of Thomas and 
Mary Marshall, was born the 24th of Sep- 
tember, 1755, Intermarried with Mary 
Willis Ambler, the 3d of January, 1783. 
Departed this life the [6th] day of July, 
1835." The second, thus: "Sacred to 
the memory of Mrs. Mary Willis Mar- 
shall, Consort of John Marshall, Born 
the 13th of March, 1766, Departed this 
life the 25th of December, 1831. This 
stone is devoted to her memory by him 
who best knew her worth. And most de- 
plores her loss." 

James Bradley Thayer. 

mond and Oakhill, his country place, every 
summer, about 100 miles each way. For in- 
stance, in 1812, Cranch, the reporter, remarks 
that Marshall was not present at the beginning 
of the term, as he " received an injury by the 
oversetting of the stagecoach on his journey 
from Richmond." 



H 



LIBRARY OF CONGRESS 




011 769 495 1 



PHOTOFILE ENVELOPES 

MADE FROM 
nro \ 4 A T TuC n A ncn 



